Legal Memorandum: Enforcement of Variances in NJ

Issue: Under New Jersey state law, are property owner’s requests for variances entertained when enforcement requires the modification of an adjacent homeowner’s building and property?

A review of New Jersey state law addressing the enforcement of Zoning Board of Adjustment variances when enforcement requires the modification of an adjacent homeowner’s building and property did not located any cases.  Presumably, such action would constitute an unconstitutional taking of personal property without just compensation and otherwise extend beyond the Board of Adjustment’s statutory authority. 

The following cases are instructive:

N.J.S.A. § 40:55D-70(c) (2011) (“The board of adjustment shall have the power to:  . . .

c.(1) Where: (a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or (b) by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to article 8 [C.40:55D-62 et seq.] of this act would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship.”).

Cohen v. Bd. of Adjustment of the Borough of Rumson, 396 N.J. Super. 608, 935 A.2d 842 (App.  Div. 2007) (The trial court must “give deference to the municipal board’s decision, and such decisions should be overturned only when proven arbitrary, capricious or unreasonable.”).

Scott v. […]